Re the Estate of Platon Elenin (Aka Boris Berezovsky) (2014)

Summary

The late Boris Berezovsky's daughter, who was involved in a dispute with the Russian airline, Aeroflot, as to who should administer her father's estate, would be entitled to rely, at the final hearing, on confidential information in the hands of non-parties relating to the solvency of the estate, subject to suitable restrictions being placed on the use of that information.

Facts

The applicants (C), being the Russian airline, Aeroflot, and the Government of the Samara Region of the Russian Federation, sought an order in relation to information said to be confidential.

Boris Berezovsky was a well-known Russian businessman who had died in England in March 2013. Before his death, he had been the defendant in various proceedings, including actions brought by C. In August 2013, his daughter (B), the first respondent, applied to the court for a grant of administration of his estate. In September, Aeroflot issued the instant proceedings, claiming that it was a creditor of the estate and seeking an order for the administration of the estate or an order under the Senior Courts Act 1981 s.116, passing over any claim of B to a grant of probate or of administration and appointing the existing receivers as administrators. C's case was that the estate was hopelessly insolvent, that it ought to be administered in the best interests of the creditors and that the receivers were more appropriate than B to act as administrators for that purpose. B's case was that the evidence would show that the estate was comfortably solvent. A redacted version of her solicitor's witness statement referred to a settlement that the deceased had entered into with "the AP Family", the third to sixth respondents, the terms of which were "highly confidential". The settlement provided for substantial sums to be paid to the deceased. The confidential material which B wished to deploy in the substantive applications related to the sums already paid by the AP Family pursuant to the settlement, the sums still to be paid, the times when those further sums would fall due, what would trigger the liability to make the further payments and the sources of those payments. The AP Family said that all those matters were confidential but that disclosure to C of, in particular, the facts as to the triggers for the liability to pay and the sources of the payments would be very damaging to them. A statement filed on the family's behalf referred to continuing efforts by the Russian Government and Aeroflot to attack assets linked, or thought to be linked, to the deceased. It was asserted, among other things, that freezing injunctions had been obtained against companies owned by the family and that criminal investigations had been opened against the senior management of those companies. The main issue was whether, subject to suitable restrictions, the confidential information could be relied on at the hearing of the substantive applications issued by B and C.

Held

The court had the power to allow a party to rely on confidential information at the hearing of substantive proceedings, subject to restrictions aimed at preserving any remaining confidentiality and/or ensuring compliance with the CPR r.31.22 and r.32.12 and/or preventing an abuse of the process of the court. In some cases, it would be appropriate to require express undertakings to comply with r.31.22 and r.32.12. In particular, that might be desirable where the confidentiality belonged to someone who was not a party to the proceedings. Further, undertakings might be appropriate where it was important to stress the seriousness which the court attached to compliance with those rules. It was open to the court in an appropriate case to restrict the representatives of a party who were to be given access to the confidential information, Church of Scientology of California v Department of Health and Social Security [1979] 1 W.L.R. 723 applied. As to the instant case, the confidential information was likely to be highly material to the outcome of the substantive applications, and the availability of that information was necessary for the purpose of disposing fairly of those applications, Science Research Council v Nasse [1980] A.C. 1028 applied. It would be appropriate to impose suitable restrictions on the use of the information. That would not prevent the parties from relying on the information for the purpose of disposing fairly of the substantive applications, nor would it conflict with the fundamental requirement of natural justice. Further, it would help to prevent the possibility of misuse of the information for collateral purposes. The following restrictions would be imposed: disclosure would be restricted to certain named persons within C, being the persons who were reasonably needed to give instructions in relation to the proceedings; disclosure was to be by way of provision of a single hard copy of the confidential information to each named person; such copy was not to leave a specified office for each named person; the copy could be inspected only by the named persons and could not itself be copied, scanned or otherwise converted into electronic form; each named person should undertake to maintain the confidentiality of the information and to use it only for the purpose of the proceedings; the parties, and the AP Family, were to have permission to apply as to how the confidential information should be dealt with at the hearing of the substantive applications and as to whether such hearing, or any part of it, should be in private; further, those persons were to have permission to apply as to the terms which should be imposed as to the destruction or return of the confidential information at the conclusion of the substantive applications (see paras 52-53, 56 of judgment).